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A letter to Kilroy Realty
Date: Thu, 23 Dec 1999 11:23:56 -0700
From: Alan Herrell <lemurs@extremezone.com>
To: investorrelations@kilroyrealty.com
Cc: WTO/GATT Admin <admin@rtmark.com>,
Robert Lane <fordbookstore@compuserve.com>,
"KNXV Ch. 15" <news15@knxv.com>, john@smokinggun.com,
Eric Brooks <ebrooks@epix.net>
Subject: Etoys Lease Agreement
Good Morning,
Rearding your press release on your 11 year agreement with Etoys, Inc.
"LOS ANGELES, Dec. 22 /PRNewswire/ -- Kilroy Realty Corporation (NYSE: KRC)
today announced that it has signed an 11-year lease agreement with eToys
(Nasdaq: ETYS), a leading internet-based retailer of children's products,
for the entire four-story, 151,000-square-foot office building currently
under construction at KRC's Westside Media Center in West Los Angeles. The
agreement also includes an option for eToys to lease the Media Center's
entire third phase of development, a similar 151,000-square-foot office
building scheduled to begin construction in mid-2000."
You may want to re-examine this decision in light of the following
information.
"On Nov. 29, a Los Angeles Superior Court judge issued a preliminary
injunction ordering the artists to stop using the domain name www.etoy.com.
EToys.com, based in Santa Monica, Calif., had sued the artists in September,
accusing them of trademark infringement, trademark dilution and unfair
competition after hearing from customers who went to the art site by
mistake, including some who complained about its profane language."
Source New York Times Online
This lawsuit is what is being referred to as 'Reverse Domain Hijacking'
In reverse domain name hijacking, the holder of a registered
rademark( such as etoys,Inc., Clue, Barbie,) tries to take advantage of the
fact that a small business or individual cannot afford to litigate the issue
of an alleged infringement.
The holder of the trademark, after deciding it would like to use the
domain name itself, notifies the registered owner of the domain name of its
specious claim, and simultaneously demands that the hapless individual
domain name holder give up the domain name, based upon an allegation of
trademark infringement and dilution.
The allegation occurs, as in this case, totally without regard to the
fact that, in a trademark infringement action involving two products of the
same name, the registered trademark owner could not show infringement or
confusion by the same mark in a totally different classification, and cannot
prove dilution or diminution of the trademark by the mere existence and use
of another product or service using the same mark.
Furthermore, a domain name is usually just an address, as in this
case, and not a product or service. It is at most a service mark, which by
definition does not infringe a product trademark which is unrelated to the
service.
The demand and claim for infringement is made without regard to
geographic location or the fact that the domain name is not in fact being
used as a trademark, but merely as an address. In point of fact, the Patent
and Trademark Office has only recently begun to register domain names, on
the theory that, prior to that time, no domain name was considered to be
used as a trademark.
This lawsuit underscores their lack of understanding of the Internet and
the lack of concern on the part of the management of Etoys, Inc. for the
rights of others.
Background Information
This suit was Originally filed 09/10/1999.
On December 27, 1999
In the Los Angelos Superior Court
County Courthouse -Central District
in Dept #53 Room 513 at 08:30 AM
in the chambers of Judge JOHN P. SHOOK
there will be a
Further Status Conference
Case # BC216606
ETOYS INC VS MARTIN KUBELI
on the alledged trademark infringement.
The etoy.com domain was registered 2 years prior to the registration of
etoys.com as the Network Solutions Whois Database shows.
http://www.networksolutions.com/cgi-bin/whois/whois?STRING=etoy.com&STRING2=search
http://www.networksolutions.com/cgi-bin/whois/whois?STRING=etoys.com&STRING2=search
Furthermore:
In Note 4 of FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarter ended SEPTEMBER 30, 1999 Commission File No.
000-25709
"NOTE 4--COMMITMENTS AND CONTINGENCIES
LEGAL PROCEEDINGS
From time to time, the Company is subject to legal proceedings and
claims in
the ordinary course of business, including employment related claims and
claims
of alleged infringement of trademarks, copyrights and other intellectual
property rights. The Company currently is not aware of any such legal
proceedings or claims that it believes will have, individually or in the
aggregate, a material adverse effect on its business, prospects, financial
condition and operating results."
This report was filed on November 11/15/99, as part of the SEC Form: 10-Q ,
which is the quarterly report required of all publicly traded companies in
the United States. You file them as well.
The link below will wrap, so you will need to cut and paste it in your
browser.
http://www.freeedgar.com/Search/ViewFilings.asp?CIK=1052245&Directory=912057
&Year=99&SECIndex=5594&Extension=.tst&PathFlag=0&TextFileSize=118872&SFType=
&SDFiled=&DateFiled=11/15/1999&SourcePage=FilingsResults&UseFrame=1&OEMSourc
e=&FormType=10-Q&CompanyName=ETOYS+INC
Failing that, use the link below.
http://www.freeedgar.com
The question is, did they forget?
Did they think that tossing a few lawyers around would let them do what they
want?
This is not a new development. these cases have been tried before with a
notable lack of success on the part of the plaintiffs,
Ford Motor Co. attacks BlueOvalNews.com
http://www.blueovalnews.com/
Hasbro attacks Clue Computing
http://www.clue.com/legal/index.html
of which in the above action your new partner is the plaintiff.
The Internet Community of which you are a member having a website, is
protesting this action across the world.
Since the 29th of November of this year,
the following articles have appeared condemning this lawsuit:
Salon, Nov. 30, 1999:
http://www.salonmagazine.com/tech/log/1999/11/30/etoys/index.html
City Pages, Dec. 1, 1999:
http://www.citypages.com/databank/20/991/article8260.asp
Village Voice, Dec. 1, 1999:
http://www.villagevoice.com/issues/9948/barliant.shtml
h2so4, Dec. 3, 1999:
http://socrates.berkeley.edu/~h2so4/etoy.html
Slashdot, Dec. 3, 1999:
http://slashdot.org/article.pl?sid=99/12/01/2156208&mode=thread
Electronic Freedom for the Next Generation
http://www.lemurzone.com/edit/converse13.htm
Telepolis, Dec. 6, 1999:
http://www.heise.de/tp/english/inhalt/te/5562/1.html
Internet News, Dec. 6, 1999:
http://www.internetnews.com/rumblings/article/0,1087,81_254441,00.html
Why WebMasters should care...
http://www.ericbrooks.com/etoys/
New York Times, Dec. 9, 1999:
http://www.nytimes.com/library/tech/99/12/cyber/artsatlarge/09artsatlarge.ht
ml
PR Web, Dec. 9, 1999:
http://www.prweb.com/releases/1999/prweb10839.htm
Washington Post, Dec. 10, 1999:
http://washingtonpost.com/wp-dyn/business/A39614-1999Dec9.html
Wired News, Dec. 11, 1999:
http://www.wired.com/news/politics/0,1283,32936,00.html
Sidney Morning Herald, Dec. 12, 1999:
http://www.smh.com.au/news/9912/13/bizcom/bizcom5.html
PC World, Dec. 13, 1999:
http://www.pcworld.com/pcwtoday/article/0,1510,14341,00.html
Branchez-Vous, Dec. 13, 1999, in French:
http://www.branchez-vous.com/actu/99-12/03-354304.html
London Independent, Dec. 13, 1999:
http://www.independent.co.uk/news/Digital/Features/toywars131299.shtml
Tasty Bits from the Technology Front, Dec. 13, 1999:
http://www.tbtf.com/blog/1999-12-05.html#5
Telepolis, Dec. 13, 1999 (in German):
http://www.heise.de/tp/deutsch/inhalt/te/5584/1.html
"Morning Edition," NPR, Dec. 13, 1999, RealAudio:
http://search.npr.org/cf/cmn/cmnpd01fm.cfm?PrgDate=12/13/1999&PrgID=3
Interactive Week, Dec. 14, 1999, top story:
http://www.zdnet.com/intweek/stories/news/0,4164,2408451,00.html
USA Today, Dec. 15, 1999:
http://www.usatoday.com/usatonline/19991215/1754367s.htm
APB News, Dec. 15, 1999:
http://www.apbnews.com/newscenter/internetcrime/1999/12/15/etoys1215_01.html
Wired News, Dec. 15, 1999:
http://www.wired.com/news/politics/0,1283,33111,00.html
The Standard, Dec. 15, 1999:
http://www.thestandard.com/article/display/0,1151,8225,00.html
ArtsWire, Dec. 15, 1999:
http://www.artscope.net/NEWS/news121499-5.html
Associated Press, Dec. 15, 1999:
http://www.washingtonpost.com/wp-srv/aponline/19991215/aponline182300_000.ht
m
Der Standard, Dec. 15, 1999, English version:
http://www.thestandard.com/article/display/0,1151,8205,00.html?nl=dnh
Slashdot, Dec. 16, 1999 (discussion):
http://slashdot.org/articles/99/12/16/0748207.shtml
Libération, Dec. 17, 1999 (in French):
http://www.liberation.fr/multi/actu/semaine991213/spec991217f.html
Seattle Weekly, Dec. 17, 1999:
http://www.seattleweekly.com/features/9949/kiss-gunn.shtml
San Jose Mercury News, Dec. 17, 1999:
http://www7.mercurycenter.com/premium/business/docs/gillmor17.htm
Wired News, Dec. 17, 1999:
http://www.wired.com/news/business/0,1367,33159,00.html
CNN (TV), Dec. 17, 1999 (very poor transcripts):
http://www.tveyes.com/database/expands.asp?ln=526785&key=etoys
http://www.rtmark.com/more/articles/etoycnntranscriptb19991217.html
"Morning Edition," NPR, Dec. 18, 1999, RealAudio:
http://www.npr.org/ramfiles/wesat/19991218.wesat.12.ram
New York Times, Dec. 18, 1999:
http://www.nytimes.com/library/tech/99/12/cyber/articles/18etoy.html
Financial Times, Dec. 18, 1999:
http://www.ft.com/hippocampus/q30842e.htm
Telepolis, Dec. 18, 1999 (in German):
http://www.heise.de/tp/deutsch/inhalt/te/5606/1.html
ZDTV, Dec. 19, 1999:
http://www.zdnet.com/zdtv/internettonight/netculture/jump/0,4603,2409365,00.
html
Arizona Daily Star, Dec. 20, 1999:
http://dispatches.azstarnet.com/joe/1999/1220-945709341.htm
Wired News, Dec. 20, 1999:
http://www.wired.com/news/business/0,1367,33184,00.html
Network World, Dec. 20, 1999:
http://www.nwfusion.com/news/1999/1220etoys.html
CNN, Dec. 21, 1999:
http://www.cnn.com/1999/TECH/computing/12/21/etoys.attack.idg/index.html
Wired News, Dec. 21, 1999:
http://www.wired.com/news/business/0,1367,33189,00.html
VilaWeb, Dec. 21, 1999 (in Catalan):
http://vilaweb.com/informatica/
ETOY: THE NAME IS NOT FOR SALE
DOUGLAS RUSHKOFF AT ETOY PRESS CONFERENCE
NYC, Museum of Modern Art, December 20, 1999
http://www.lemurzone.com/edit/opinion.htm
Sueddeutsche Zeitung, Dec. 22, 1999 (in German):
http://www.rtmark.com/more/articles/etoysueddeutsche19991222.html
I haven't included todays information but I would not be surprised that it
will show up.
The Internet community is so outraged that the following sites have been
created to protest this latest assault on the freedom of the internet.
etoys-sucks.com
http://www.etoys-sucks.com
Eviltoy.com
http://www.eviltoy.com/
Toy War Resistance Network
http://members.tripod.com/trnetwork/
Toy War
http://www.toywar.com/"
eToy exile site
http://146.228.204.72:8080/
WTO/GATT
http://www.rtmark.com/etoy
Top: Society: Activism: Media Activism: Culture Jamming: etoy: Media
Coverage (71)
http://dmoz.org/Society/Activism/Media_Activism/Culture_Jamming/etoy/Media_C
overage/
Lets take a quick look at the historic and current shareholder value of
Etoys, Inc.
Friday, November 26, 1999 Closing Price: 66 5/8
On Saturday November 29, 1999, Salon Magazine published the first piece on
this situation.
Monday, November 29, 1999 Closing Price: 67 1/16
Friday, December 03, 1999 Closing Price: 53 13/16
Friday, December 10, 1999 Closing Price: 45 1/8
Friday, December 17, 1999 Closing Price: 37 9/16
Today at 12:26pm ET 31 1/4 (as of this writing the value is still going
down)
In less than 30 Days Etoys has lost over 50% of its value.
Congratulations on your contract. I hope you got the money up front.
I will be posting this letter in it's entirety on my website.
I will send you a link to it and would be happy to post any response you may
have.
Thank you for your time.
Alan Herrell
LemurZone Design
http://www.lemurzone.com
Phoenix, Arizona
1-602-995-2602
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